BVA9505261
DOCKET NO. 93-00 383 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Columbia, South
Carolina
THE ISSUES
1. Entitlement to service connection for a disorder manifested
by headaches and fainting spells.
2. Entitlement to service connection for post traumatic stress
disorder.
3. Entitlement to service connection for residuals of a left
foot injury.
4. Entitlement to service connection for residuals of a right
foot injury.
5. Entitlement to service connection for a bilateral ankle
disorder.
6. Entitlement to service connection for residuals of a left
thigh injury.
7. Entitlement to service connection for a respiratory disorder,
including bronchitis.
8. Entitlement to an increased rating for a hearing loss of the
left ear, currently rated as 10 percent disabling.
9. Entitlement to an increased rating for residuals of a left
knee injury, currently rated as 10 percent disabling.
10. Entitlement to an increased rating for residuals of a low
back injury with mild degenerative changes, currently rated as 10
percent disabling.
11. Entitlement to an increased (compensable) rating for
tinnitus.
12. Entitlement to a total disability rating, for compensation
purposes based on individual unemployability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. R. Olson, Counsel
INTRODUCTION
The veteran's active military service extended from December 1966
to November 1968.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a February 1992 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Columbia, South
Carolina. That rating decision denied entitlement to service
connection for a disorder manifested by headaches and fainting
spells, post traumatic stress disorder (PTSD), residuals of a
left foot injury, residuals of a right foot injury, a bilateral
ankle disorder, residuals of a left thigh injury, residuals of a
right knee injury and a respiratory disorder, including
bronchitis. The rating decision continued a 10 percent rating
for a hearing loss of the left ear which had been in effect since
1968, increased the rating for the residuals of the left knee
injury to 10 percent disabling, granted service connection for
residuals of a low back injury with mild degenerative changes and
assigned a rating of 10 percent disabling, and granted service
connection for tinnitus rated as noncompensable. The February
1992 rating decision also denied a total disability rating, for
compensation purposes based on individual unemployability.
Service connection for PTSD was denied on the basis that service
connection for a nervous condition due to a stress syndrome was
denied by an unappealed rating decision of August 1981. An
unappealed decision of the RO becomes final. 38 U.S.C.A.
§ 7105(c) (West 1991). However, a final decision on a claim may
be reopened and the claim reconsidered on the basis of all the
evidence of record, if new and material evidence is submitted.
38 U.S.C.A. § 5108 (West 1991). In February 1991, the RO
received a copy of the veteran's DA Form 20 showing that he was
briefly assigned to an infantry unit as a rifleman. Since this
raises the possibility that he may have been in combat, it is new
and material evidence. Therefore, the claim of entitlement to
service connection for PTSD is reopened and will be considered on
the basis of all the evidence of record.
In April 1980, the Board denied service connection for a left
thigh disability. Decisions of the Board are also final.
38 U.S.C.A. § 7104(b) (West 1991). Even a final decision by the
Board may be reopened and the claim reconsidered on the basis of
all the evidence of record, if new and material evidence is
submitted. 38 U.S.C.A. § 5108 (West 1991). In July 1981, a VA
orthopedist expressed the opinion that the veteran's thigh
disability was the residuals of an injury. Since the service
medical records show a left thigh injury, this medical opinion
constitutes sufficient evidence to reopen the claim.
The RO also determined that the veteran had not submitted new and
material evidence to reopen a claim of service connection for
residuals of a right foot injury. The statement of the case
referred to a denial by a July 1972 rating decision. Review of
the documents preceding that decision show that the veteran was
not claiming service connection for the foot injury at that time.
The July 1972 rating decision did not indicate the foot
disability as being at issue, although the disorder was listed
among the veteran's nonservice-connected disabilities. The
veteran was not properly notified of a denial of service
connection for the foot injury, although there was a comment
inside a statement of the case on a different issue. The Board
finds that the issue of entitlement to service connection for
residuals of a right foot injury has not been the subject of a
previous final decision by the RO.
REMAND
The February 1992 rating decision was based on the report of an
October 1991 VA examination. The range of lumbosacral motion was
reported to be normal. In Littke v. Derwinski, 1 Vet.App. 90
(1990), the United States Court of Veterans Appeals (Court) held
that this type of examination was not adequate for rating
purposes. The Court emphasized the need for actual measurements
of the range of motion. See 38 C.F.R. § 4.46 (1994). The Court
also asserted that examinations must be done in accordance with
the VA PHYSICIAN'S GUIDE FOR DISABILITY EVALUATION EXAMINATIONS
(GUIDE). The Court has since pointed out that examinations must
provide sufficient information to rate the disability in
accordance with the applicable rating criteria. See Massey v.
Brown, 7 Vet.App. 204 (1994). The veteran's lumbar spine and all
of the joint at issue should be examined in accordance with the
rating criteria and the GUIDE.
Also, it appears that the previous opinion relating the left
thigh disability to an injury was not based upon review of the
service medical records. These should be made available to the
orthopedic examiner and he should provide an opinion on based on
the complete record.
The veteran contends that he should be given a higher rating
because he cannot communicate due to his hearing loss.
Currently, only his left hearing loss is service-connected. To
get a higher rating, he must have a service-connected right sided
hearing loss, 38 C.F.R. § 4.85 (1994), or total deafness in the
non-service connected right ear, 38 C.F.R. § 3.383(a)(3) (1994).
The service medical records do show a right sided hearing
deficit, although the examiners speculated as to a functional
component and post service tests showed normal hearing on the
right. Recent tests have shown that the veteran is again
exhibiting a right sided hearing loss. Since this must be
service-connected for a higher rating, it presents the issue of
service connection for a right sided hearing loss as an
intertwined issue. This issue must be resolved to rate the
service-connected hearing loss.
The veteran asserts that he missed the hearing portion of his VA
examination due to an error in communication. He obtained the
report of a private audiologist at his own expense. Under these
circumstances, he should be given another opportunity to report
for a VA audiology examination.
The DA Form 20, Enlisted Qualification Record, shows that the
veteran was briefly assigned to an infantry unit as a rifleman.
This evidence considered with the information provided by the
veteran warrants full development of the issue of entitlement to
service connection for PTSD.
To ensure that VA has met its duty to assist the claimant in
developing the facts pertinent to the claim and to ensure full
compliance with due process requirements, the case is REMANDED to
the RO for the following development:
1. The RO should request from the veteran a
statement containing as much detail as
possible regarding the stressors to which he
was exposed during service. The veteran
should be asked to provide specific details
of the claimed stressful events during
service, such as dates, places, detailed
descriptions of the events, his service units
in Vietnam, duty assignments and the names
and other identifying information concerning
any individuals involved in the events. The
veteran should be told that the information
is necessary to obtain supportive evidence of
the stressful events and that failure to
respond may result in adverse action.
2. Regardless of the veteran's response, the
RO should review the file and prepare a
summary of all the claimed stressors. This
summary and all associated documents,
including a copy of the DA Form 20,
should be sent to the United States Army and
Joint Services Environmental Support Group
(ESG), 7798 Cissna Road, Springfield, VA
22150. They should be requested to provide
any information which might corroborate the
veteran's alleged stressors.
3. Following the above, the veteran should
be examined by a panel of two VA
psychiatrists who have not previously
examined him to determine the exact
diagnosis, if any, of the psychiatric
disorder. Each psychiatrist should conduct a
separate examination with consideration of
the criteria for post-traumatic stress
disorder. The examination report should
include a detailed account of all pathology
found to be present. If there are different
psychiatric disorders than post-traumatic
stress disorder, the board should reconcile
the diagnoses and should specify which
symptoms are associated with each of the
disorder(s). If certain symptomatology
cannot be disassociated from one disorder or
another, it should be specified. If a
diagnosis of post-traumatic stress disorder
is appropriate, the examiners should specify
the credible "stressors" that caused the
disorder and the evidence upon which they
relied to establish the existence of the
stressor(s). They should also describe which
stressor(s) the veteran reexperiences and how
he reexperiences them. The psychiatrists
should describe how the symptoms of post-
traumatic stress disorder affect his social
and industrial capacity. The report of
examination should include a
complete rationale for all opinions
expressed. All necessary special studies or
tests including psychological testing and
evaluation such as the Minnesota Multiphasic
Personality Inventory (MMPI) and the
Mississippi Scale for Combat-Related Post-
Traumatic Stress Disorder are to be
accomplished. The examiners should assign a
numerical code under the Global Assessment of
Functioning Scale (GAF). It is imperative
that the physicians include a definition of
the numerical code assigned. Thurber v.
Brown, 5 Vet.App. 119 (1993). The diagnosis
should be in accordance with the American
Psychiatric Association: DIAGNOSTIC AND
STATISTICAL MANUAL FOR MENTAL DISORDERS (3d ed.
rev., 1987). The entire claims folder and a
copy of this Remand must be made available to
and reviewed by the examiners prior to the
examination.
4. Following the above, the veteran should
be accorded an examination by a VA
orthopedist. The report of examination
should include a detailed account of all
manifestations of joint pathology found to be
present. All necessary tests and X-rays
should be conducted and the examiner should
review the results of any testing prior to
completion of the report. Special attention
should be given to the presence or absence of
pain, any limitation of motion, instability
and weakness. Special attention should be
given to the joints of the spine and both
hips, knee, ankles and feet. The examiner
should express an opinion as to what, if any,
current residuals there are from the left
thigh injury during service. A copy of this
Remand and the claims folder must be made
available to and be reviewed by the examiner
prior to the examination. The orthopedist
should provide complete rationale for all
conclusions reached.
5. The veteran should be accorded an
examination by a physician specializing in
ear and hearing disorders. The report of
examination should include a detailed account
of all manifestations of the tinnitus and
bilateral hearing loss found to be present.
All necessary tests, including audiological
testing, should be conducted and the examiner
should review the results of any testing
prior to completion of the report. The
physician should express an opinion as to
whether the veteran's hearing loss and
tinnitus are persistent. The examiner should
express an opinion as to the nature of any
relationship between the right sided hearing
loss noted during service and any current
right sided hearing impairment. A copy of
this Remand and the claims folder must be
made available to and be reviewed by the
examiner prior to the examination. The
specialist should provide complete rationale
for all conclusions reached.
6. The RO should review the examination
reports and determine if they are adequate
for rating purposes and in compliance with
this Remand. Any report which is not
adequate should be returned for corrective
action.
7. Inasmuch as the issue of entitlement to
service connection for a right hearing loss
is deemed to be "inextricably intertwined"
with the issue of entitlement to an
increased rating for the service-connected
left hearing loss, the RO should take
appropriate adjudicative action, and
provide the appellant and representative,
if any, notice of the determination and the
right to appeal. If a timely notice of
disagreement is filed, the appellant and
representative, if any, should be furnished
with a statement of the case and given time
to respond thereto.
Following completion of these actions the RO should review the
veteran's claims. If the decision remains unfavorable, the
veteran and representative should be provided with a supplemental
statement of the case and afforded a reasonable period of time in
which to respond. Thereafter, in accordance with the current
appellate procedures, the case should be returned to the Board for
completion of appellate review.
The Board intimates no opinion as to the ultimate outcome of this
case.
No action is required of the veteran until further notice is
issued.
MARY GALLAGHER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).